July 28, 2009

Top confession expert barred from testifying

Over the past few decades, police have developed a set of sophisticated procedures to get suspects to confess to crimes. Most suspects who succumb to the so-called "Reid" tactics of manipulation and deception are actually guilty. But some minority -- the exact proportion is unknown -- are not.

How can judges and jurors tell the difference?

The short answer is, they generally cannot. False confessions can look amazingly real. In the Central Park jogger case, for example, juveniles who falsely confessed to gang-raping a woman energetically demonstrated their (false) actions on videotape. Five juveniles were convicted on the basis of the false videotaped confessions, despite no physical evidence linking them to the crime. It wasn't until years later that the true culprit (a lone sexual predator) was identified.

To jurors, judges, police, and other members of the public, confession evidence is overwhelmingly powerful evidence of guilt. After all, it goes against common sense to think that someone would confess to a crime he did not commit.

Luckily, researchers have laboriously combed through confessions that later turned out to be false, and have found markers of unreliability. Among the markers are lengthy and intense interrogations, "contamination" through police feeding of crime facts to suspects, and a lack of guilty knowledge on the part of the suspect. Certain individual factors (such as youth, low intelligence, naivete, and acquiescence to authority) also put some suspects at heightened risk.

A leading expert in this area is Richard Leo, a law professor at the University of San Francisco and author of Police Interrogation and American Justice. Because laypeople lack the expertise to tease out telltale markers of unreliability, Leo has educated jurors and judges about this science.

That is just what he was slated to do in the Michigan case of Jerome Kowalski, who confessed on videotape to the 2008 shooting deaths of his brother and sister-in-law. Leo was prepared to testify about how Kowalski might have come to believe he committed the crime despite having no recollection of it.

Typically, expert witnesses are allowed to testify when they can provide information that is beyond the common knowledge of jurors, and will assist such "fact-finders" in arriving at the truth. Leo believed his testimony could "be important at trial to help the jury understand police interrogation methods and 'how some methods can lead to a false confession,' " according to a report in today's Livingston Daily Press and Argus.

But, in a ruling that shocked the defense attorneys and has created some hubbub among forensic psychologists around the country, a judge barred both Leo and a clinical psychologist from testifying, saying jurors can use their common sense to determine whether the confession is valid.

"We have no defense at this point," attorney Walter Piszczatowski told a newspaper reporter after the hearing. He asked Judge Theresa Brennan to put the case on hold while he appeals, but she denied that request too. The trial is set to start in October.

Livingston Daily Press and Argus coverage of this case is HERE.My review of Leo's Police Interrogation and American Justice is HERE.A related blog post, "Canada: How false confessions occur," is HERE.

A book with chapters by psychologists Sol Fulero and Bruce Frumkin on the admissibility of this type of confession testimony is expected out later this year from the American Psychological Association press. The book, Interrogations and confessions: Research, practice, and policy, is being edited by Christian Meissner and G. Daniel Lassiter, both of whom have extensive expertise in this field.

1 comment:

What an interesting post! There is always heavy debate about how confessions are obtained...so the debate continues!

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About the blogger

Karen Franklin, Ph.D. is a forensic psychologist and adjunct professor at Alliant University in Northern California. She is a former criminal investigator and legal affairs reporter. See her website for more professional background. If you find this blog's content helpful, you may subscribe to its digest version (via "subscribe" box, above) to automatically receive new posts.

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